The gauntlet was thrown down last month, when a federal judge ordered the US government to bring the 17 members of the Uighur ethnic group to the US pending Bush administration efforts to find a third country willing to resettle them permanently. Justice Department lawyers objected, saying that the judge exceeded his authority by requiring the government to admit the Uighurs into the US without regard to immigration laws barring the men.
On Monday, the issue will be argued before a three-judge federal appeals court panel in Washington.
The case will help establish in concrete terms what release from Guantánamo means when it is ordered as a remedy by federal judges. More than 200 habeas corpus cases are pending at the federal courthouse in Washington, filed on behalf of detainees at the US terror prison camp at Guantánamo Bay, Cuba.
At issue is whether a federal judge hearing a Guantánamo habeas case has the power not only to order the release of a detainee from US custody, but also to order the government to bring the detainee to the United States for possible resettlement.
"It is clear the court has the power to order this remedy," says Sharon Bradford Franklin of The Constitution Project. "This is not a radical thing for a court to do."
Although the government concedes that it is no longer treating the Uighurs as enemy combatants, the 17 men remain confined at the detention camp. The Bush administration says it cannot return the men to China because, as members of a persecuted ethnic minority group, they may face human rights abuses. No third country has been willing to accept them, in part because of fear of angering China.
Rather than allow the government to continue to hold them indefinitely at Guantánamo, US District Judge Ricardo Urbina ordered the men freed and brought to the US pending any resettlement.
The government had "subverted" diplomatic efforts to relocate the Uighurs, he said, and had engaged in "manipulation" to keep the 17 men behind bars even after they'd been ordered released.
The men have been held at Guantánamo for nearly seven years despite a lack of evidence of any involvement in terrorism. They were sold to the US military by bounty hunters, and Judge Urbina concluded they are not dangerous.
"The Uighurs are not a terrorist organization. They pose no threat to the US government. The US government agrees with that," says New York lawyer Howard Schiffman, who filed a friend of the court brief on behalf of the Uyghur American Association, a Washington-based advocacy group.
At the heart of the case is a clash between the power of a federal judge to order a meaningful remedy – freedom – and the power of the government's political branches to undercut a judicial order by enforcing policies that conflict with that order.
The case highlights the rising influence of federal judges in counterterrorism policy since June, when the US Supreme Court gave Guantánamo detainees a right to challenge the legality of their detentions.
The case also arises at time when the new administration of Barack Obama is preparing to take office in late January. The president-elect has said he wants to close Guantánamo, and some analysts are hopeful that his administration will adopt a more sympathetic approach to the Uighurs' plight.
Last week, Attorney General Michael Mukasey urged Congress to pass a law to block federal judges from admitting former Guantánamo detainees into the US.
"Where a court finds that a detainee cannot be held as an enemy combatant, he should be returned to his home country or another country willing to receive him," Mr. Mukasey wrote in a Wall Street Journal op-ed essay. "He should not be permitted to jump the immigration line and enter this country."
The problem, according to lawyers for the Uighurs, is that a federal judge can order someone released from Guantánamo but can't order a foreign country to accept the freed detainee. "Thus, if the executive [branch] cannot or will not arrange those remedies, the district court must reserve a power to give an effective remedy," writes Boston lawyer Sabin Willett in his brief to the appeals court.
He says unless judges in Guantánamo habeas cases have the power to order real freedom, executive branch officials may use their authority to "switch the Constitution on or off at will."
Justice Department lawyers say issues of foreign policy and national security are entrusted to Congress and the executive branch, not the courts. "The power to allow aliens into the United States rests exclusively in the political branches," writes Solicitor General Gregory Garre in his brief. "The political branches have made a judgment that [the Uighurs] should remain housed in relatively unrestricted conditions at Guantánamo, pending the successful conclusion of ... diplomatic efforts" to resettle the men in a third country, he says.
In the meantime, he adds, the Uighurs have no statutory or constitutional right to enter the US.
Mr. Willett says the political branches can't strip judges of their power to decide cases and order remedies.
"The hour is late," he writes. "If ever a case asked whether judicial review under our Constitution is real, it is the case of the Uighur prisoners still stranded at the Guantánamo prison."